Date: Thu, 10 May 2007 12:28

From: Robert Stevens

Subject: Good news/bad news

I doubt very much whether the letter giving the "good news/bad news" patient his prognosis contained a disclaimer. This is not standard practice in the NHS,

If that is the case then the NHS should change its standard practice, as this case demonstrates. If this is standard practice in all cases, they are badly advised. Perhaps books on Medical Negligence law should make this suggestion?

and it would be very unusual for one to be included, not least because any disclaimer in respect of personal injury or death would not be valid (Unfair Contract Terms Act 1977, s. 2(1)) - and doctors are dealing mostly with death and personal injury

Of course, but this is not a case of death or personal injury.

- and a disclaimer in respect of financial loss would be subject to a reasonableness test (ibid, s. 2(2)).

Absolutely, but there is no doubt that this disclaimer, if properly drafted, would be reasonable in respect of this consequential loss, as this example itself shows.

We also know that a disclaimer will not necessarily be treated as negativing the Hedley Byrne assumption of responsibility, given the existence of s. 2(2) (see Smith v Bush).

In principle it does negative the assumption of responsibility, otherwise the result in Hedley Byrne is inexplicable, unless the disclaimer itself is prohibited by legislation.

For myself, I'd consider Smith v Bush doubtful in principle, especially in the light of Williams v Natural Life Health Foods. It was never terribly easy to reconcile with D&F Estates, unless you took the view that there is one rule for negligent words and another for negligent acts, which was the very thing I had thought Hedley Byrne had said there was not. Following Williams I'd suggest that D&F Estates is right and Smith v Bush wrong. Certainly the reasoning of their Lordships in Smith v Bush is inconsistent with subsequent developments (indeed, I'd suggest, inconsistent with the reasoning in Hedley Byrne).

Robert Stevens

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